Percolating for the last couple of years has been the question of whether a “savings clause” or a “disclaimer” in an employee handbook or policy manual would be sufficient to protect policies in the handbook from attack under the NLRA. In a significant decision earlier this month, the NLRB has answered that question with a resounding “maybe.”

To readers of this blog, it is no surprise that employer’s policies and rules of conduct are subject to challenge under the NLRA. This has always been the case, and has become even more prevalent over the last few years. Some have questioned whether a “savings clause” or a “disclaimer” would help the employer defend against these challenges. The idea is to include in the handbook or policy a statement that employees should not interpret any of the rules in a way that would deny rights under the NLRA.

In the recently decided case, the employer maintained what it called a “Freedom of Association Policy” in its employee handbook. The policy was apparently quite lengthy, spanning three pages of the employer’s 73-page-long handbook. The policy reaffirmed various employee rights, including a secret ballot election, “informed choice,” and “representative voter turnout.” The NLRB’s decision focused on the following sentence in the policy:

[D]uring union organizing campaigns, management shall support the employee’s individual right to choose whether to vote for or against union representation without influence or interference from management.

The employer argued that this policy precluded the NLRB from finding that employees would read any of its other work rules, which were also challenged in the case (see discussion below), as unlawfully restricting their rights under the NLRA.

The NLRB agreed that “an employer’s express notice to employees advising them of their rights under the [NLRA] may, in certain circumstances, clarify the scope of an otherwise unambiguous and unlawful rule.” In the particular case under consideration, however, the NLRB found that the Freedom of Association Policy was insufficient. 

First, the policy was too narrow. The NLRB suggested, without explaining further, that an effective “savings clause” should adequately address “the broad panoply of rights” protected by the NLRA. 

Second, the NLRB faulted placement of the disclaimer language. It found that it was neither prominent nor closely located in the handbook to the rules that the employer argued the policy informed.  Specifically, it was approximately thirteen pages away from the page on which various rules that the NLRB found unlawful were located.

Third, the NLRB noted the employer committed other unfair labor practices in connection with union organizing activity. This unlawful conduct contradicted the terms of the policy and thus the policy could not insulate the employer from liability from its otherwise lawful rules.

Member Johnson (R) agreed with the outcome on the disclaimer clause. However, he would not weigh the location of the “disclaimer” within the handbook as heavily as his colleagues.

In other holdings in the case, the NLRB found the following rules in the employer’s handbook were lawful:

  • A rule prohibiting employees from “using company property for activities not related to work any time,” which was located within a rule prohibiting stealing and theft from the employer;
  • A rule that prohibited “poor work habits including loafing, wasting time, loitering or excessive visiting,” because a reference to poor work habits is sufficient for a reasonable employee to understand that the rule is directed towards job performance; and
  • A rule prohibiting “profane or abusive language where the language used is uncivil, insulting, contemptuous, vicious, or malicious,” because the context of the introductory language made the overall purpose of the rule clear.

On the other hand, the NLRB found unlawful the following rules:

  • A rule prohibiting “discourteous or inappropriate attitude or behavior to passengers, other employees or members of the public” and “disorderly conduct during working hours,” because it was ambiguous and thus employees could reasonably construe it as limiting communication concerning their employment;
  • A rule prohibiting the disclosure of “any company information for any purpose other than to perform duties,” because failure to define company information permitted employees to read it as a restriction on disclosure of their own wage and benefit information; and
  • A rule prohibiting employees from making any statements about an accident to “anyone except the police or company officials,” because it was an unlawful “gag rule” on discussion of working conditions with other employees or with union representatives.

The NLRB’s decision raises a number of interesting issues and questions for an employer:

  • For those employers that do not have a “disclaimer” or “safe harbor” statement, consideration should be given to whether one should now be adopted.
  • For those employers that do have a “disclaimer” or “safe harbor” statement, the NLRB’s decision is a must read to determine whether the language used will be effective.
  • Many open questions exist for resolution in the future, like how many rights must be included, where the language must appear in relation to the challenged conduct rule, and what types or how many unfair labor practices may nullify the employer’s effort to draft effective language.

As the law in this area develops in future cases, probably the most interesting question will be how much of the language from its now-abandoned notice poster the NLRB requires to appear in the “disclaimer.” Surely, the NLRB saw its notice poster as a comprehensive statement of employee rights under the NLRA. Will this level of detail be necessary to address the “broad panoply” of rights requirement? It will surely be ironic if the NLRB’s case law develops in such a manner that the notice posting it attempted to mandate is adopted by employers voluntarily as a defense to possible unfair labor practice charges over the text of their employee handbooks and policy manuals.